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AAC F A M I L Y & F R I E N D S Responsibilities


another time is given, the notice should run for one week, per Ark. Code Ann. § 16-3-102. Differences emerge when looking at payment for these notices. According to Ark. Code Ann. § 16-3-103, pay- ment for the notice should be paid for by the party at whose instance it was published. Tis payment, “or so much as deemed reasonable,” may be taxed as other costs otherwise allowed by the proper courts in the course of the proceed- ings to which the advertisement relates. Te only guidance given to what constitutes as “reasonable,” however, is a re- quirement that a newspaper may not receive more than its regular classified advertising rate for publications. It may be helpful in the future for legislators to provide more guid- ance or more uniform requirements between notice require- ments of county collectors and circuit clerks.


Public Records of County Officials


1. Records Available to the Public Generally Te current law on public records, Ark. Code Ann. § 14- 14-110, requires that records and written materials in the possession of a local government shall be available for inspec- tion and copying by any person during normal office hours. However, personal records, medical records and other records relating to individual privacy are not available to the public unless the individual requests they be made available.


2. Production of Public Records Under FOIA In 1967, Congress enacted the Freedom of Information


Act (FOIA) in order to make federal government records available to the public. Te same year, Arkansas passed simi- lar legislation to make state records available to the public. Te purpose of these laws is to promote transparency in gov- ernment. In some circumstances, however, complying with these laws can greatly burden public officials and prevent them from being able to exercise their duties elsewhere. For this reason, specific exceptions to the laws exist – two poten- tial exceptions considered in this session are discussed below.


a. Overly Burdensome Productions Several surrounding states, such as Kansas, Kentucky and


Texas, provide a method of dealing with overly burdensome requests from the public. For example, if a public agency receives a request that is overly broad or unduly burden- some, the public records custodian is typically required to negotiate with the person to narrow his or her request. Pub- lic agencies are allowed to charge requestors reasonable fees to help cover the cost of providing the public records. If attempts to narrow the request or charge reasonable fees do not resolve the issue, FOIA laws usually allow the agency to deny the request. Every state provides the requestor a means


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of appealing a denial for a public records request, and un- less there is a statutory exemption for the public records, the public agency usually has the burden of proving that the denial was justified. Some states require the public agency to meet a higher burden of proof than others. Arkansas law does not provide any exceptions for unduly


burdensome requests. As the law stands right now, public officials have three days to comply with any public records request, regardless of how much time or man power it may require to produce the documents. Te consequences are severe; public officials may face criminal or civil penalties under Ark. Code Ann. §§ 25-19-104 and 107. Te ma- jority of states surrounding Arkansas — including Texas, Oklahoma, Mississippi and Missouri — allow longer peri- ods to respond. Only Louisiana has the same time frame — three business days — as Arkansas to respond to a request. Both Mississippi and Tennessee must respond in seven days, while Texas must provide notice of when it will reasonably respond if not able to do so in 10 days. Oklahoma must only respond promptly. While Missouri should respond in three business days, this time frame may be lengthened by written notice. Here in Arkansas, Rep. Bob Johnson and Sen. Jane Eng-


lish proposed House Bill 1622. If passed, this bill would have allowed a public entity more time to comply with a re- quest considered to be unduly burdensome. Te public re- cords custodian would have had to provide an explanation to the requestor about why there was a delay in responding to his or her request and an expected date of compliance. Tis provision would have given public officials the flex- ibility they need from time to time to divert resources and man power to comply with a request for an extraordinary quantity of public records. Te bill would not have allowed an official to deny a request, and it would have maintained the civil and criminal penalties already in place. Unfortu- nately, this bill did not pass, but may be an indication of future flexibility for response time for county officials in FOIA compliance. Even though an increase in the time of production was


not provided this session, a step toward progress was made by the passage of another bill sponsored by Rep. Johnson and Sen. English. House Bill 1623 (now Act 1107) will al- low the recipient of a FOIA request to refer the requester to the respective county’s website if the information is al- ready available there. Tis allowance will be useful for elec- tronic records kept online like police reports, public court records, and data published by the county assessor or collec- tor. Tough more progress is needed to continue to alleviate some of the burden from county officials in some circum- stances, this enacted bill is a step in the right direction.


COUNTY LINES, SPRING 2017


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